UPDATE : Will Court Draw More Lines Against Racial Gerrymandering? : Justices will decide whether districts can be configured to offer minority representation without being race-driven.

WASHINGTON —  To black and Latino advocates, the issue is voting rights. White critics say it is a matter of “racial gerrymandering.”

The advocates say they seek fairness and equal representation for minorities. Thanks to the redrawn boundaries after the 1990 census, Congress has a record 39 black lawmakers and 18 Latinos. But the critics say this race-driven political line-drawing resembles a new type of voter segregation by race. They point to the bizarrely shaped districts, especially in the South, and label them “constitutional monstrosities.”

For the third time in three years, the Supreme Court has delved into a devilish dilemma: How can electoral boundaries be drawn in a way so minorities can win representation but without dividing up voters strictly based on their race?

“We are dealing with two very volatile areas: race and politics,” Justice Anthony M. Kennedy said in a resigned tone near the end of a particularly contentious argument session. “We are searching for some neutral, fair principles,” not a means to give one group an advantage over another.

So far, however, the search has proved more difficult than the justices had assumed, and the stakes are growing for minorities. The court’s rulings will govern the district line-drawing not just for members of Congress but also for state legislatures, county boards, city councils and even school districts.

The effect of the court’s rulings has already been felt. Last month, for example, a federal judge in Northern California reversed course and threw out a judicial election in Monterey County that resulted in the first election of a Latino municipal judge there in 145 years. The action came after the federal courts, in an attempt to increase Latino representation, had ordered Monterey officials to change from countywide to district elections for their 10 municipal judges. Now, the same courts say the revised plan is unconstitutional because “race was a significant factor in dividing the county into election areas.”

As one NAACP Legal Defense and Education Fund lawyer said with only slight exaggeration, if the courts insist that race can never be used as a basis for drawing electoral lines, “the Congressional Black Caucus will be able to meet in the back seat of a taxicab.”

Even with the newly drawn districts, blacks hold 7% of the seats in Congress, while they make up 12% of the population. Latinos hold 3% of the congressional seats, while making up 10% of the population.

BACKGROUND: The dispute has its origins in 1982, when Congress expanded the Voting Rights Act to say that minorities had a right to “elect representatives of their choice.” In response, the Justice Department said states should draw electoral districts where possible to elect more blacks, Latinos and other minorities.

But the Supreme Court, in a stunning reversal in 1993, called a halt to “racial gerrymandering,” regardless of whether it aided minorities. That 5-4 opinion did not spell out what states should do.

Last year, the court went further and said that race may not be the “predominant factor” in creating an electoral district. On a 5-4 vote, it struck down a black-majority district in Georgia that had elected Democratic Rep. Cynthia McKinney.

And last week, a federal court panel in Georgia redrew the state’s congressional districts to avoid racial gerrymandering, wiping out two of the three black-majority districts.

Now the high court is considering cases from Texas and North Carolina where, if anything, the issue gets even more complicated.

In Texas, a conservative three-judge panel threw out as unconstitutional the majority-black districts in Dallas and Houston, along with a majority-Latino district in Houston, because they were oddly shaped for racial reasons.

But the court set a peculiar double standard. It said that state lawmakers can draw odd-shaped districts to protect powerful incumbents in Congress. However, they cannot draw odd-shaped districts to help elect minorities.

In Dallas and Houston, the center-city districts were strange looking mostly because white incumbents had insisted on pulling away reliable Democratic precincts within the city. Nonetheless, the lower court struck down only the “majority-minority” districts. It upheld the overwhelmingly white districts on the theory that protecting powerful incumbents is a time-honored tradition.

In North Carolina, in contrast, a liberal three-judge panel upheld a 160-mile-long, majority-black district that stretches down Interstate 85 from Durham to Charlotte. It reasoned that this district, even though it looks odd on the map, made sense because it linked urban areas.

OUTCOME: The resolution of this dilemma almost surely depends on one justice: Sandra Day O’Connor.

The high court’s four solid conservatives--Chief Justice William H. Rehnquist and Justices Antonin Scalia, Clarence Thomas and Kennedy--have asserted flatly that lawmakers may not use race as the basis for drawing district lines.

This view, if strictly applied, would strike down most of the congressional districts now held by black and Latino representatives.

The four liberals--Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer--have said they would uphold racially drawn districts to give greater representation to minority representatives.

O’Connor sits in the middle, just as in the area of affirmative action. She has voted with the conservatives against the use of race for awarding government contracts or drawing electoral boundaries, but stopped short of saying “never.” Instead, she has suggested race can be used in a limited way to benefit minorities and to bring about greater fairness.

In the recent argument, she seemed to be looking for a middle ground that would allow for drawing “compact” districts that have a black or Latino majority.

“Couldn’t a majority-minority district be drawn here [in Dallas and Houston] that would be more compact?” she asked a Texas state attorney in Bush vs. Vera, 94-805.

Yes, he replied, a “more geographically compact” black-majority district could have been drawn--had white lawmakers not insisted on carving up parts of Dallas and Houston for their own purposes.

“So even if these peculiar districts are tossed out,” she continued, “there is a sufficiently large minority community” in the two Texas cities to create a compact majority-black or majority-Latino district.

If O’Connor follows through on this idea, the court could fashion rules that might eliminate a few “majority-minority” districts, but preserve most of them.

Over the years, however, O’Connor has struggled to write legal opinions that spell out her shades-of-gray views.

On abortion, for example, she opposed both “abortion-on-demand” as well as a strict ban on all abortions. It took her 11 years on the court, but she finally fashioned a middle approach that allows some state regulation of abortion but does not allow laws that put an “undue burden” on a woman’s choice.

On affirmative action, she has not spelled out a clear formula. Government may not use race in awarding contracts or jobs, she said, unless it has a “compelling reason.” But she has not made clear what a compelling reason is.

Now, it is her turn again to find a solution to the voting-rights controversy. She is clearly uncomfortable with “racial gerrymandering” but concedes that throughout American history, districts have been drawn to help elect the Irish, Italians, Jews and members of virtually every other minority group.

Her answer will not likely come soon. The justices have until next summer to issue opinions in the Texas and North Carolina cases.

(BEGIN TEXT OF INFOBOX / INFOGRAPHIC)

Which Ones Are Legal?

A Texas court ruled that two of these three district were legal, allowing the districts that were drawn for political reasons but not the one that was drawn to increase minority representation.

DISTRICT 6

* Yes: This odd-shaped district was allowed, despite its patchwork layout, on the basis that it was not drawn on a racial basis, but on a political one

****

DISTRICT 12

* Yes: This district was also upheld for the same reasons, which allow powerful members of Congress to protect their constituencies.

****

DISTRICT 30

* No: The court rejected this 47% black district on the grounds that it was drawn along racial lines, which the Supreme Court has disallowed.

Note: Diagrams not to scale